Constitutions Old and New: A Panel Discussion with Justices Anthony M. Kennedy and Richard Goldstone

On April 8, 2014, William & Mary Law School hosted a panel entitled “Constitutions: Old and New,” which featured Anthony M. Kennedy, Associate Justice of the United States Supreme Court, and Richard Goldstone, former Justice of the South African Constitutional Court, joined by Dean Davison Douglas and Professor Christie Warren.

Justice Kennedy's topic was "Old Constitutions," and the importance of building constitutions which last and are respected by all branches of government as well as society. He described the flexibility and durability of the United States Constitution as the oldest in the world, stating that the strength of the U.S. constitution lies in its longevity. He emphasized the "capacious" language of the document that allowed for it to change over time, citing the broad terms "life, liberty, and property.” This flexibility is aided by the role of the courts in interpreting the language of the document. Kennedy rooted this in the generally accepted American jurisprudence principle of Chief Justice John Marshall’s landmark decision, Marbury v. Madison. Kennedy went on to discuss that there is, however, interesting international comparisons in the assertion of judicial authority by such courts. Marshall picked an issue that was a minor contest at the time, and because of his selectivity, he was able to expand the power of the courts without too much backlash. By contrast, Kennedy pointed out, the High Court in Hong Kong tried a similar judicial move, but did so while trying to invalidate a law of extreme social and political importance. This decision was then defeated by the legislature, thereby defeating judicial review and creating ongoing constitutional difficulties.

Justice Goldstone, by contrast, spoke of the phenomena of new constitutions, emphasizing the theme of international law and its impact on constitutions. Goldstone emphasized the fact that the South African Constitution required, in its very text, consideration of international law and invited consideration of foreign law in resolving constitutional issues. Justice Goldstone spoke of starting the South African Constitutional Court in the wake of apartheid and the challenge of creating new law in the vacuum of appropriate South African legal precedent following governmental restructuring and the creation of a new constitution. He related the importance of Dutch Common Law and the prevalence of international norms in interpreting early cases and noted the growing power of precedent over the past 20 years since the Court's founding. He, much like Justice Albie Sachs (who visited William & Mary Law School a few weeks prior), noted the importance of President Nelson Mandela to the process of consolidating power around the court. In the Constitutional Court’s very first term, they ruled against a executive order issued by President Mandela, declaring it an overreach of executive authority into the legislative sphere—Mandela accepted the ruling, and thereby allowed for a precedent to be set that imbued the Court with judicial authority and showed the nation Mandela’s respect and deference for the role of the Constitution Court.

Justices Goldstone and Kennedy then fielded questions from Dean Douglas and the students in the audience. Justice Kennedy said that when working with people in countries in which new constitutions are being drafted, it is easier when that country has a basis of past decisions to draw on—it provides a legal foundation to draw from. He also spoke about the American legal foundation, such as the Lockean provisos in the 14th Amendment (life, liberty, and property), and discussed how it must now be interpreted in light of the morals of our time. He noted how the rule of law is “fragile,” and that this must be taken into consideration when considering the longevity of constitutions. He emphasized how the American people had a cohesive land mass to call their own, contributing to the sense of American “identity,” and that it matters a lot to Americans that they can define themselves politically by their Constitution. Justice Kennedy further spoke about features of “old” constitutions and noted that some critics’ criticism of any reference in United States Supreme Court decisions to foreign judicial decisions is misplaced, considering that many early Supreme Court decisions did so, especially in the admiralty context.

Justice Goldstone noted that it was very important in South Africa that the Constitution be sourced from and be a product of the people. In creating the new Constitution, South Africa refused to give the minority white population "veto power," but nevertheless included them in the process from the beginning. It was essential that the executive branch respect the decisions of the Constitutional Court when it cut against the executive. Goldstone spoke about how the particular experiences of apartheid in South Africa informed several provisions that had to be incorporated into the Constitution and the structure and role of the Constitution Court. South Africa’s Constitution has a range of positive rights, including the right to access to housing and food. The Constitution also guaranteed the right to healthcare, which stemmed from the practice of white ambulances being unwilling to pick up black patients during apartheid, or of picking them up, but only taking black patients to white hospitals. He also spoke about how he thought that South Africa’s Truth and Reconciliation Commission, which let people voice their past illegal or immoral acts publicly, in order to receive reduced or commuted punishments, was very important as a precursor to establishing the new country. He thought that in South Africa’s particular cultural context, it was a much better option than criminal prosecutions, as prosecutions would have been nearly impossible legally and extremely costly, considering the scope of prior wrongdoing. He discussed what it is like when you’re interpreting a constitution for the first time. South Africa consulted many foreign legal opinions in the early years of the Constitutional Court, but he anticipates that in the future they will be able to rely more exclusively on their growing body of decisions, as they form a true, democratic stare decisis.

Both Justices Goldstone and Kennedy also responded to the question of what fundamental principles should be included by new countries or countries emerging from revolution (such as the Arab Spring countries) in their constitutions in order to ensure staying power and effectiveness. Justice Kennedy stressed that the country must convince all stakeholders to have the proper motivations in drafting their constitutions. Justice Goldstone stated that a country must involve its people to create a sense of national ownership over the constitution. A constitution which is the genuine product of a country's citizens is more likely to be upheld and respected.